Vision Group Holdings Limited - s.87B undertaking

Vision Group is a provider of ophthalmic services.  Icon Laser (Aust) Pty Ltd (Icon), a wholly owned subsidiary of Vision Group, owns and operates a number of ophthalmic consulting and surgical businesses, including the Central Queensland Eye Centre (CQEC) practice.

Icon recruited Dr Blanc to work at the Hervey Bay and Maryborough clinics of CQEC and entered into an Independent Contractor Agreement (Agreement) with him in July 2006.  The Agreement concerned the terms and conditions on which Dr Blanc was engaged by Icon and included a provision confining the area in which Dr Blanc could undertake private ophthalmic practice during, and for a defined period following the termination of, the Agreement.

The Agreement was terminated following a break down in discussions between the parties.  Dr Blanc commenced his own practice in Maryborough in the same region as a CQEC clinic in potential breach of the restraint clause in the Agreement.  Vision Group instituted legal proceedings against Dr Blanc in relation to the alleged breach.  The parties settled the dispute by way of a Deed of Release dated 17 July 2007 (Deed).

Clause 3.1(4) of the Deed provided that Dr Blanc must not perform operations at the Hervey Bay Surgical Centre located at Boat Harbour Drive, Pialba, Queensland for a period of 12 months from 18 May 2007 unless St Stephen's Hospital Hervey Bay was in liquidation and/or ceased to operate in which case Dr Blanc may perform operations at the Hervey Bay Surgical Centre.

The ACCC considers that clause 3.1(4) of the Deed constitutes an exclusionary provision for the purpose of restricting or limiting the supply by Dr Blanc at the Hervey Bay Surgical Centre of ophthalmic services to patients in the relevant geographic region of Hervey Bay and Maryborough (and thereby constraining the Hervey Bay Surgical Centre from competing in the market).